No matter how long you were married, the assets you generated in your marriage matter. Not only will you never be younger, but – if you waive too much – you’ll never have the chance to take advantage of compounding interest.
That can be the difference between being able to retire and … not.
Sure, you probably have Social Security, but who wants to depend solely on social security? Besides, you have assets that you’ve paid into, you just need to make sure that you access your portion of those assets in your divorce.
No matter what he says – and no matter what you think now – waiving them to make things “easier” is unlikely to actually make things easier for you. You should know and understand your entitlements under Virginia law and insist on them as the bare minimum that they are.
What does Equitable Distribution mean?
Virginia is an equitable distribution, rather than a community property state, meaning that instead of assuming 50/50 at the outset, Virginia kind of assumes a 0/0 split. Then, based on the negative and positive monetary and non-monetary contributions of each party to the marriage, we wiggle up the scale to determine a real allocation of assets.
This leaves room for the court to decide on something other than a 50/50 split, but the reality is that – barring very extreme circumstances – the court usually still ends up pretty close to 50/50. I’ve seen a few circumstances where the court deviates, like one case where the husband was on 100% disability and the court didn’t have the authority to award the level of spousal support that the wife should have received, so it gave her instead a larger share of the interest in the home and the retirement accounts to offset.
This isn’t really a divergence from 50/50, it was just a way of making it more egalitarian while still recognizing that it had no authority to award things differently if it needed to in the interests of … equity.
What does equity mean?
Well, something like fairness, I guess. But I don’t think that you should go into your divorce case expecting to feel like it’s somehow fair.
The dictionary definition of equity is “fair and impartial,” but that’s a bit lofty to apply to the court system. Fairness itself is a sort of subjective idea already, so it can be hard to truly cater to what each side feels is fair.
So, what do we divide in a Virginia divorce?
You’ll divide all of the assets, liabilities, and responsibilities you generated throughout the marriage, so what – exactly – is going to be divided is going to vary on a case-by-case basis. For most people, that means we’re dividing the equity interests in a house, a few cars, a 401(k) or two, and some credit card debt as well as custody and visitation.
Your case may differ from this. You may have different assets and/or liabilities than described above. Every case is different. But, generally speaking, we’ll take each asset, liability, or responsibility and classify it as either separate (not divisible in divorce), marital (divisible in divorce), or hybrid (part marital and part separate, so part to be divided and part to remain with the party who owned the part-separate interest). From there, we’ll divide.
Houses, Cars, Retirement Accounts, Etc.
Many things, like houses, cars, retirement accounts, and more are ultimately (usually!) divided 50/50, unless there are extreme circumstances that might require an alternate division. Just the fact that he had an affair, for example, is probably not enough to say, well, this is a negative non-monetary contribution so great that the non-offending partner’s share of the house should be correspondingly greater.
Usually, the court is willing to consider the possibility of an alternate division when there has been an economic consequence. Say he has a drug addiction that has caused him to liquidate a 401(k). The court could, potentially, then order the innocent wife the other 401(k) to offset the damage of his negative monetary contribution to the marriage. This isn’t a guarantee, of course, but just an example of what the court might consider something serious enough to warrant an alternate division.
Cars are sometimes more difficult, in the sense that – though you might drive an expensive car – they aren’t necessarily worth that much. There may (or may not) even be equity associated with your car, so it’s not like taking the more expensive car is always a win. In a lot of cases I’ve worked on, I find the parties fight over the older, paid off car, rather than wanting to take on the more expensive car with the more expensive loan. Generally, too, whoever takes the asset – the car, the RV, the boat – takes the loan associated with it. If there’s equity, that may be offset, either in the form of cash or equalized by the division of the other assets. (I take the boat, you take the diamonds; it all comes out in the wash.)
Debt
Debt will be divided, too, though the percentage is often complicated. If he’s earning 80% of the income, it’s probably likely that he’ll take a larger share of the debt, but that’s not guaranteed. Like so many things, what happens is up to the court’s discretion, but I do think it’s generally reasonable that a lesser earning party would take less of the debt.
Here, too, the court could consider equity. If one party has made significant expenditures as part of the pending separation, the court could allocate that debt to that party. If the husband has had an affair and has spent thousands on jewelry and vacations for his new girlfriend, you could argue that he should be responsible for that debt since it wasn’t accrued for a marital purpose. If you have enough evidence, I suspect the court would be sympathetic.
Child and spousal support
You may also have an interest in support. Meeting with an attorney can help you run these sort of guideline calculations and figure out where you’ll be as a starting point. Usually, spousal support is not awarded permanently anymore; we often see spousal support lasting a specific term of years or, alternately, ending on the retirement of the paying party. Spousal support is one of the harder areas to predict accurately from the beginning, because it’s not as well established as other parts of the law. It – along with child custody – is also one of the more likely pieces of the case to be litigated.
Virginia is not a state that mandates automatic 50/50 custody to start. In Virginia, the standard is “best interests of the child,” and the court is supposed to consider all forms of custody (shared physical, primary physical, and sole physical) equally. The catch, though, is that more parenting time equals less child support for the non custodial parent, so you may find that even a formerly disinterested parent is suddenly interested in making sure he gets all of “his” time.
Whether you’re hoping to DIY your divorce, you plan to attend mediation, or you’re going to retain an attorney to represent you, it’s always a good idea to talk to an attorney to get an idea of your specific rights and entitlements. A lot of people don’t realize that they can meet with an attorney as many times as they like throughout the process without hiring that attorney, so – if you need help – ask for it.
Remember that the assets you’ve generated are worth something, so the cost of a consultation is unlikely to be more than you stand to gain (or benefit from by avoiding, in the case of a debt) if you were to get the full extent of your entitlement. It’s so costly to leave stones unturned in a divorce!
For more information, request a copy of our divorce book for women or our book on hiring a divorce attorney (or not), or just give the office a call at 757-425-5200 to schedule a consultation.